Chandra Mohan v. State of Uttar Pradesh (1966)

Chandra Mohan is the standard authority for the rule that the Constitution is interpreted by the same fundamental rule as any statute — find the expressed intention from the words — but that where two constructions are possible, the Court adopts the one that ensures the smooth and harmonious working of the Constitution and rejects one that leads to absurdity, practical inconvenience, or makes well-established law nugatory.

It is also a clear demonstration of reading a provision in its setting. Read alone, Art. 233 seemed to let the Governor appoint anyone "in the service of the Union or of the State" as a district judge. Read with the whole of Chapter VI of Part VI, the definition in Art. 236(b), Art. 237, Art. 50 and the history of the service, "the service" meant only the judicial service. The case shows harmonious construction, contextual reading, and historical reading working together.

In 1961-62 the Registrar of the Allahabad High Court called for applications for ten vacancies in the U.P. Higher Judicial Service, from Bar members of more than seven years' standing and from "judicial officers". The Court noted that "The expression "judicial officers" is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties."

Under the U.P. Higher Judicial Service Rules, made by the Governor under Art. 309, a Selection Committee (two High Court Judges and the Judicial Secretary to Government) screened the applications, interviewed candidates and prepared lists; the High Court forwarded to the Governor candidates it considered suitable from those lists; the Governor appointed from the lists. The Committee selected six: three advocates and three "judicial officers" (respondents 2 to 7). The High Court approved the selection.

The appellant, a member of the U.P. Civil Service (Judicial Branch) then acting as a District Judge, and others petitioned the Allahabad High Court under Art. 226 to restrain the appointments. A Division Bench agreed that selection from the Bar was valid but differed on the "judicial officers"; on reference, the third Judge upheld both, and the petitions were dismissed. The High Court's certificate was issued in general terms although its order suggested it meant to confine the appeal to the "judicial officers".

1. Could the appellant challenge the appointment of the advocates, given the High Court's view that their case raised no question fit for a certificate?
2. Do Rules that route the Governor's appointment of district judges through a Selection Committee comply with the requirement in Art. 233(1) of consultation with the High Court, and with Art. 233(2) for recruitment from the Bar?
3. Does "the service of the Union or of the State" in Art. 233(2) mean any service, or only the judicial service — so that the Governor could, or could not, appoint executive "judicial officers" as district judges?

The appeals were allowed. The Rules providing for recruitment of district judges were held constitutionally void, the appointments illegal, and a writ of mandamus issued restraining direct-recruitment appointments pursuant to those selections.

The certificate

The appellant had been misled by a certificate in general terms, and the respondents "were equally negligent in not getting the certificate amended". The Court granted special leave as regards the advocates, excusing the delay.

Consultation with the High Court — Art. 233(1) and (2)

The appointment power is conditioned by consultation with the High Court, which "is expected to know better than the Governor" about a candidate's suitability. The mandate can be disobeyed in two ways: "(i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons." The Constitution names more than one consultee where it intends to (Arts. 124(2), 217(1)) and a single one where it intends that (Art. 222). Put simply: "if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D."

Under the Rules, "the High Court is practically reduced to the position of a transmitting authority". It could not scrutinise other applications or recommend anyone not on the Committee's lists. For advocates, Art. 233(2) allows the Governor to appoint only those recommended by the High Court, but under the Rules "the High Court can either endorse the recommendations of the Committee or create a deadlock." The consultation was "an empty formality" and "This is a travesty of the constitutional provision." The Rules "clearly contravene the constitutional mandates of Arts. 233(1) and (2) of the Constitution and are, therefore, illegal."

The rule of interpretation

Before construing Arts. 233–237, the Court stated the rule for which the case is chiefly cited: "the fundamental rule of interpretation is the same whether one construes the provisions of the Constitution or an Act of Parliament, namely, that the court will have to find out the expressed intention from the words of the Constitution or the Act, as the case may be." And: "if, however, two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory." (A stray full stop after "working of" in the reported text has been removed.)

"The service" means the judicial service

• Background and purpose: the Constitution provides for an independent judiciary in the States; Art. 50 directs separation of the judiciary from the executive, which "means that there shall be a separate judicial service free from the executive control."
• Structure: "Art. 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges." It lays down neither qualifications nor sources; those are in cl. (2).
• Setting: the chapter deals with subordinate courts, so "the service" there is the service pertaining to courts. Art. 236(b) defines "judicial service" as a service "consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge." That the definition comes in a later article makes no difference: "The definition is exhaustive of the service." Having defined the judicial service in exclusive terms and placed it under the High Court's control, the makers of the Constitution would not have given the Governor a blanket power to appoint anyone from any service as a district judge.
• Art. 237: it lets the Governor bring magistrates into the judicial service by notification; it "emphasises the fact that till such an integration is brought about, the magistrates are outside the scope of the said provisions."
• Rameshwar Dayal v. State of Punjab distinguished: the passage relied on was "nothing more than a summary of the relevant provisions", and the question did not arise there.
• History: before independence, district judges came from the ICS, the provincial judicial service and the Bar; after 1947 only from the judicial service or the Bar, and no member of the executive had been promoted as a district judge. "What can be more deleterious to the good name of the judiciary than to permit at the level of district judges, recruitment from the executive departments?"

The Court concluded: "We, therefore, construe the expression "the service" in cl. (2) of Art. 233 as the judicial service." The Rules empowering recruitment of "judicial officers" were unconstitutional and the appointment of respondents 5, 6 and 7 was bad. The Court did not decide the Arts. 14/16 point or the "Civil and Sessions Judges" point.

1. The fundamental rule of interpretation is the same for the Constitution and for an Act: find the expressed intention from the words. Where two constructions are possible, the Court adopts the one that ensures the smooth and harmonious working of the Constitution and rejects one that leads to absurdity, practical inconvenience, or nullifies well-established law.
2. Where the Constitution requires the Governor to act "in consultation with the High Court", consulting another body as well — or reducing the High Court to a transmitting authority — violates the mandate. Rules under Art. 309 cannot override Art. 233.
3. "The service of the Union or of the State" in Art. 233(2), read in the setting of Chapter VI, with Art. 236(b), Art. 237, Art. 50 and the history of the service, means the judicial service; members of the executive cannot be appointed district judges directly.

• Harmonious construction: Explain the rule of harmonious construction with reference to constitutional provisions. Quote the "two constructions are possible" passage and show how the Court applied it: the wide literal reading of Art. 233 would have cut across the scheme of an independent judiciary.
• Is the Constitution interpreted differently from a statute? Chandra Mohan says the fundamental rule is the same — find the expressed intention from the words — with harmonious working as the guide between two possible readings.
• Context and definitions: a good example that a definition in a later article (Art. 236(b)) governs an expression in an earlier one, and that a phrase is read in the setting of its chapter.
• External aids: the Court used Art. 50 (a Directive Principle) and the pre-Constitution history of recruitment as aids to construction.
• Limit to state in any answer: the technique chooses between constructions that the words can bear; the Court began from the expressed intention in the words and used harmonious working only because "two constructions are possible".
• Cross-reference: in Constitutional Law, this is a leading case on Arts. 233–237 and consultation with the High Court.